It is up to the Minister to decide whether she wishes to respond to that point of order.

As the Speaker himself might say, the right hon. Gentleman has been here a long time and will no doubt find other ways to pursue the matter. I am grateful for the point of order.

behalf of news publishers

With this it will be convenient to discuss the following:
Clause stand part.
Clauses 168 and 169 stand part.
Government amendment 72.
Amendment 138, in clause207,page121,line12,after “subsections” insert “(1A),”.
This amendment is a paving amendment for amendment 139.
Amendment 139, in clause207,page121,line13,at end insert—
“(1A) Sections 168 and 169 extend to England and Wales only.”
This amendment would ensure that clauses 168 and 169 would only extend to England and Wales and not apply in Scotland.

Brendan O'Hara: Amendments 137, 138 and 139, which stand in my name and that of my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East, were tabled because we believe that the Bill is incompatible with the devolution settlement, trampling roughshod over areas of wholly devolved competence. Whether by accident or design, the Lords amendments  on Leveson—in particular on section 40—that seek to impose a one-size-fits-all Truro to Thurso solution are wholly inappropriate, as they fail to recognise or take cognisance of the fact that in press regulation and criminal justice, to name just two fields, it is the Scottish Parliament, not this place, that has legislative competence. The three amendments draw that distinction and defend the devolution settlement, removing any lingering doubts as to where the hitherto clear legislative boundaries, which have existed since 1998, lie.
Amendment 137 relates to any future inquiry on press standards, styled as Leveson 2. The Scottish National party has been clear throughout that all individuals should be able to seek redress when they feel they have been the victim of press malpractice, and that it benefits each and every one of us to have media that are transparent and accountable. However, we have been equally clear that if there is to be a second part of the Leveson inquiry, the distinct legal context in Scotland must be taken into account. As press regulation and criminal justice are matters for the Scottish Parliament, it is that body that must be consulted about the scale and the scope of any future inquiry and how it will operate in Scotland. As long as the Scottish Government were consulted and the distinct Scottish legal system taken into account, we would be happy to support efforts to establish a second part of a Leveson inquiry because any reasonable person would agree that the terms of reference for that part of the inquiry have not yet been met.
It is unfortunate that we have had to table the amendments. It is not unreasonable to expect the House of Lords to know that press regulation and all the associated issues of the culture, practice and ethics of the press would fall under the devolved competence. A blanket UK-wide amendment would only negatively affect areas of devolved competence. We are disappointed that the amendments were necessary in the first place, but we sincerely hope that Members in all parts of the Committee support our attempts to respect the devolution settlement.
Amendment 139 would ensure that clauses 168 and 169 would extend only to England and Wales and would not apply in Scotland. Again, this is simply a case of our having to tidy up after the Lords. I want to put on record that there is no excuse for what we regard as lazy and entirely inappropriate amendments from the other place. By accident or design, those amendments take no cognisance whatsoever of which powers are devolved and which are reserved. For the future benefit of their lordships, let me say again what I have said on numerous occasions. Although data protection may well be an area of competence reserved to this place, press regulation and criminal justice are wholly devolved to the Scottish Parliament and have been for the past 20 years. If the Bill is not amended, the power of this Parliament will be extended into areas that are solely the preserve of the Scottish Parliament. I believe that will set a very dangerous precedent.
Not only does the Bill drive a coach and horses through the devolution settlement, but I would question why the House of Lords thought it in any way appropriate to apply section 40 of the Crime and Courts Act 2013 to the whole of the United Kingdom, because there is no such piece of legislation as the Crime and Courts Act in Scotland. It simply does not exist. Furthermore, the  whole concept of exemplary damages, as I understand is being proposed, is not even recognised and has no equivalent in Scots law. If the Bill were passed unamended, it would force the Scottish Government to pass a legislative consent motion—something they have said they have no intention of doing because, as I said, press regulation and criminal justice are wholly devolved to the Scottish Parliament.
It is simply unacceptable for the UK Parliament to decide what should happen in Scotland with regard to press regulation; that is a job for the Scottish Parliament. The Scottish Government have made it clear that, although they are not opposed to press regulation and are having ongoing discussions with the Scottish media about best to implement an independent press regulation system, it is for Holyrood to decide on a course of action, not to have it decided for them by Westminster. I fully expect the Government to seek to remove clauses 168 and 169 and the Opposition to seek to restore them on Report. I hope that, when the Labour Opposition do that on Report, they will ensure that what they bring back to the Floor of the House of Commons is compatible with the devolution settlement and that the proposed new clause will exclude Scotland from the section 40 legislation.
It is not enough for the Government to say that they understand and sympathise. I urge the Minister to accept our amendments because they preserve and protect the devolution settlement, which has worked well for the past 20 years in terms of press regulation and criminal justice. I ask the Minister and in particular Conservative Members representing Scottish constituencies to respect the devolution settlement and accept that what came back from the House of Lords flies in the face of the long-established devolution settlement. I ask them to accept that it is wholly inappropriate and inconsistent with Scots law and, therefore, support our amendments.

Order. First, let me correct a possible misunderstanding. The right hon. Member for Birmingham, Hodge Hill mentioned that clauses 168 and 169 will be debated later. In fact, we are debating them as part of this group, as I tried to make clear when I introduced amendment 137.

Yes. Clauses 168 and 169. Clause 168 refers to section 40 of the Crime and Courts Act 2013.

I would be delighted if the hon. Gentleman did that.

One or two colleagues have caught my eye because I was not clear enough in my introduction to this section. I invite Mr Liam Byrne to readdress the Committee in relation to these clauses.

Margot James: I will set out the Government’s position on clauses 142, 168, 169 and 205, before returning to the amendments in the name of the hon. Member for Argyll and Bute.
As we have heard, clause 142 requires the Government to establish an inquiry with terms of reference similar to those contained in part 2 of the Leveson inquiry, but in relation to data protection only. The Government set out our intention not to reopen the Leveson inquiry in our response to the consultation on the future of the inquiry on 1 March. I will not repeat the arguments in full, but I will say that the Government’s firm focus is on the problems faced by the media right now.
The Government recognise that there is a great deal of feeling on both sides of the debate. We have listened to all views, including those of victims, in reaching a decision. No one seeks to excuse the past behaviour of individual media organisations, nor to legitimise it. As the right hon. Member for Birmingham, Hodge Hill said, some of the stories we heard at the beginning of the Leveson inquiry were horrific. The Government have a duty, however, to make decisions that are proportionate and in the public interest. In the light of all the evidence available, it is apparent that part 2 of the inquiry is no longer appropriate or proportionate.
Part 1 of the inquiry lasted over a year, and heard evidence from more than 300 people, including journalists, editors and victims. Since then, the majority of the Leveson recommendations have been implemented. Three  major police investigations examining a wide range of offences have been completed. More than 40 people were convicted, some of whom were sent to prison. There have also been extensive reforms to policing practices, and significant changes to press self-regulation.
As a result, the terms of reference for part 2 have largely been met, and the culture that allowed phone hacking to become the norm has changed. Meanwhile, the media are facing critical challenges that threaten their sustainability, including fake news, declining circulations and gaining revenue from online content. Free and vibrant media are vital to democratic discourse, and we need to tackle those challenges urgently. Holding a costly and time-consuming public inquiry looking predominantly backwards is not the right way to go.
The Government are committed to addressing these issues, and we are developing a digital charter to ensure that new technologies work for the benefit of everyone, with rules and protections in place to keep people safe online and to ensure that personal information is used appropriately. As part of that, we are also undertaking work to ensure that there are sustainable business models for high-quality media online. The media landscape is different and the threats are different, too. Issues such as fake news mean there is a need to protect the reliability and objectivity of information.
Likewise, clauses 168 and 169 are similar to the provisions contained in sections 40 and 42 of the Crime and Courts Act 2013, but apply to breaches of data protection law only. The Government do not believe that introducing a provision similar to section 40 of the 2013 Act into the Bill is appropriate, but in relation to data protection only. That is particularly so given our decision earlier this month to repeal section 40 when there is a suitable legislative vehicle. In coming to that decision, we considered all the available evidence, including the views of respondents to the public consultation that we undertook last year. Many respondents cited concerns about the chilling effect that section 40 would have on the freedom of the press, which was so ably summed up my hon. Friend the Member for Boston and Skegness.

With this it will be convenient to discuss Government amendments 52, 54, 126 and 58.

Margot James: The Information Commissioner has a breadth of corrective powers at her disposal to investigate breaches of data protection legislation. One such power is the ability to issue an information notice on a data controller requesting that they provide the commissioner with specified information. Article 2 of the general data protection regulation states that certain types of processing of personal data, including purely personal or household activities, are exempt from the provisions of the GDPR. That includes the list of all those hon. Members who deserve a Christmas card this year.
Although such processing is exempt, it is important that in certain situations the Information Commissioner is able to verify that the processing actually meets this test and does not fly under the radar of GDPR requirements unduly. Government amendments 51 and 52 will ensure that the Information Commissioner is able to issue an information notice, in order to determine whether the process is genuinely being undertaken in the course of a purely personal or household activity.
Government amendment 54 is a consequential amendment. It ensures that the reference to processing of personal data in the subsection added by Government amendment 52 means any type of processing, pulling on the definitions provided in subsections (2) and (4) of clause 3, rather than those under parts 2, 3 or 4, none of which apply to processing in the course of purely personal or household activities.
Government amendments 58 and 126 make further consequential changes to clause 159 and paragraph 9 of schedule 16. The amendments ensure that certain safeguards for controllers and processors in the context of enforcement action extend to all persons, since their exact status may in fact be the source of dispute.
All in all, this a common sense set of changes that enjoy the full support of the Information Commissioner’s Office.

Order. There is confusion on the Front Bench. Please continue, Mr Byrne.

With this it will be convenient to discuss Government amendments 57 and 180.

With this it will be convenient to discuss amendment 158, in clause171,page97,line28,at end insert—
“or
(d) was done in the process of making a protected disclosure for any of the purposes of the Employment Rights Act 1996 or the Employment Rights (Northern Ireland) Order 1996 (SI 1996/1919 (NI 16)).”.
This amendment seeks to ensure that the offences listed in the offences of the Bill do not infringe on a worker’s ability to raise public interest concerns about wrongdoing, risk or malpractice.

Liam Byrne: I am grateful to my hon. Friend the Member for Edinburgh South for keeping me warm and enthused.
The amendment is important. None of us wants to damage the right and power of whistleblowers to bring important information into the public domain, sometimes to the attention of regulators, sometimes to the attention of organisations, such as the Health and Safety Executive, and sometimes to the attention of Members. Over the years, we have put in place a good regime in order to ensure that whistleblowers are afforded protections that allow them to come forward with information that is in the public interest.
The reason we have to consider that now is that data protection legislation is being strengthened by the incorporation of GDPR into British law. However, the risk is that the ambiguities that frame the protection of whistleblowers in the Bill are such that many are concerned that whistleblowers will not be given the right protection against data protection legislation.
The Government recognise that it is important to protect whistleblowers. There is a protection in clause 170 for whistleblowers bringing forward information that is
“justified as being in the public interest.”
The argument put to us by Public Concern at Work and others is that that approach is unlikely to be effective. We are told that there will be a new test in law, which will therefore require guidance from the courts. Until that time, the precise meaning will obviously be a bit moot, and the scope of the situations that the Government seek to protect will remain a little uncertain. That uncertainty and ambiguity will jeopardise an individual who might have something important to bring to the attention of the outside world.
Exceptions to violations in personal data confidentiality were recently considered by the Government in section 58 of the Digital Economy Act 2017, which provided a far more comprehensive list of exceptions. Where there is overlap between the Bill and the Digital Economy Act, appears that the Act deals much more satisfactorily with whistleblowers.
I remind the Committee that section 58 of the Act says that the offence does not apply to a disclosure
“which is a protected disclosure for any of the purposes of the Employment Rights Act 1996 or the Employment Rights (Northern Ireland) Order 1996”.
We therefore have a pretty well established and grounded definition of exceptions. Indeed, it was so well defined and grounded that the Government decided to use that definition in the 2017 Act. It is not clear why the Bill seeks to create alternative definitions and therefore the need for alternative tests and guidance in the courts when we have a definition we can rely on.
The Opposition amendment would return us to what we think was sensible drafting in the Digital Economy Act. That Act is not ancient history—it was only 12 months ago. Otherwise, the risk is that the Government, employers, courts and trade unions will get into an awful muddle as they try to understand which legislation protects whistleblowers in new circumstances. None of us wants to create a situation of uncertainty and ambiguity that stops whistleblowers from coming forward with important information.
I therefore hope we can have a useful debate about why the Government have chosen to introduce new definitions when it is not clear that they are improvements on well-established employment law that dates back to the Employment Rights Act 1996. Let us hear what the Minister has to say, but I hope the Government reflect on the arguments we rehearse this afternoon and introduce further enhancements and perfections on Report.

Stuart McDonald: The right hon. Gentleman is correct: it is essential that we do not create an offence in the clause that will snare whistleblowers. I am sure the Committee shares that goal. Indeed, if we created such an offence, whistleblowers would no longer be whistleblowers—a qualifying disclosure would no longer be a qualifying disclosure if it were an offence under different legislation, including the Bill.
We will listen carefully to what the Minister says, but, to come at it from a slightly different angle, as I understand it, the Employment Rights Act currently requires a  “reasonable belief” by the worker making the whistleblowing disclosure that it is in the public interest to disclose that information. That seems a slightly easier test than the one contained to a defence in subsection (2) of the clause, which requires not a “reasonable belief”—those words do not appear—but proof that disclosure was justified in the public interest. There is also a contrast with subsection (3), where a reasonable belief test is applied to a defence but only in circumstances of publication of either journalistic, artistic or literary material.
It is not clear to me why there is a reasonable belief test in subsection (3) but not in subsection (2). I am interested to hear what the Minister has to say about that distinction.

I hope the Minister understood all that.

Margot James: When we leave the European Union, the direct jurisdiction of the Court of Justice of the European Union in the UK will come to an end. Clause 6 of the European Union (Withdrawal) Bill gives effect to that and takes a clear and logical approach to how our domestic courts should approach the case law of the CJEU as a result. In short, where a judgment precedes our exit, it is binding on courts below the Supreme Court. Where a judgment post-dates our exit, our courts may have regard to it if they consider it appropriate, but EU law and the decisions of the ECJ will continue to affect us. The ECJ determines whether agreements that the EU has struck are legal under the EU’s own law. If, as part of our future partnership, Parliament passes an identical law to an EU law, it may make sense for our courts to look at the appropriate ECJ judgments so that we interpret those laws consistently, but our Parliament would ultimately remain sovereign.
If we agree that the UK should continue to participate in an EU body or agency such as the European Data Protection Board, the UK would of course have to respect the remit of the ECJ in that specific regard, but our Parliament would remain ultimately sovereign. It could, for example, decide not to accept those rules, but with consequences inevitably for our membership of the relevant agency and linked market access rights.
The approach is sensible and realistic. Opposition Members have suggested that if the UK is to achieve the future relationship with the EU on data protection that we seek, we must follow the jurisprudence of the ECJ post-Brexit in respect of data protection. We do not believe this to be the case. There are a number of existing precedents where the EU has reached agreements with third countries that provide for a close co-operative relationship without the CJEU having direct jurisdiction over those countries. It is worth quoting directly from the European Union (Withdrawal) Bill, which states:
“A court or tribunal need not have regard to anything done on or after exit day by the European Court, another EU entity or the EU but may do so if it considers it appropriate to do so.”
I should make it clear that the provision does not seek to legislate for the content of a withdrawal agreement or implementation period. If there is a role for the CJEU as part of the agreement, as has been set out in the joint report in relation to citizens’ rights, it would be legislated for under the separate withdrawal agreement and implementation period, but it would not be right to try to legislate now in anticipation of a final legal text agreed with the EU on the terms of our withdrawal from the EU.
The position in the European Union (Withdrawal) Bill reflects the reality that in leaving the EU we will be ending the direct jurisdiction of the CJEU over our  domestic courts while also allowing judges to take account of post-exit CJEU judgments. This is similar to how the UK courts can currently take into account judgments made by courts from other jurisdictions, although of course we recognise that as the text of our law and EU law will at the outset be the same or substantially similar in many cases, it is highly likely in practice that our courts may find it helpful to look at the CJEU judgments, and that is perfectly legitimate and sensible for them to do so.

Margot James: I would not rule it out, but the negotiations are between two parties, so however much we may wish to maintain our membership of the European Data Protection Board, that might not be something that the EU will grant us. As I say, it is a matter for negotiation and I am sure things will become clearer over the next 12 months. To take an approach now that would require our courts to follow future case law of the CJEU, even if only in some areas, would place limitations on the discretion and independence of our courts.